Note: This is a interview piece by Haroon Mogul in response to “A theology of Rape” that was published in The New York Times.

The Prophet Muhammad was born into a society organized into patrilineal tribal clans. Men were judged superior to women. Female children were often buried alive at birth. Men married and divorced at will. Paternity was everything, ensuring one’s relative rank within the tribe; there was little security outside the tribe. Those with no relations were worst off, often enslaved, abused, raped and tortured. Blood feuds were frequent, common, easy to begin, and difficult to end.Muhammad began preaching a faith with a strong social component. He worked as a spiritual and social reformer, though he operated in the categories of his time, reforming the institutions of his time given the possibilities of that time. This context is missing in most mainstream analysis of Shari’ah.

First, capital punishment is the hadd, or maximum, penalty a judge could mete out for a given crime. In the context of a society wherein a murder of any one individual would justify the massacre of a another random individual, this focus on individual, not tribal, responsibility, was morally revolutionary.

Second, any hadd punishment (murder, for example) demanded a very high standard of proof, which modern Shari’ah scholars define as beyond our own evidentiary standards of “beyond a reasonable doubt.” Mere suspicion, accusation, or even likelihood, was insufficient.

Third, the Prophet said: Forgive. It is always better to forgive. God rewards those who show lenience. When the Prophet’s father-in-law, Umar, became Caliph in 634, he suspended all hadd punishments for theft (the maximum possible punishment is amputation). Due to a famine in the lands under his control, he reasoned that a maximal penalty on a people in economic hardship was morally odious.

Thus when we discuss the question of Islam and slavery, let us not presume that Muhammad introduced slavery into the culture. He was born into a society that practiced slavery, and that permitted sexual relations with slaves, with almost no restriction.

Rape is a crime, regardless of who the person is.

Scholars View

Omar Suleiman, head of the history department at Bayyinah, an Islamic institute of higher learning based in Texas, confirmed this to me in an extensive conversation on Islam, slavery and sexual consent. “Rape is violence,” Suleiman made clear, “and Islamic scholars have even classified it as muharabah, as war against the community,” the maximal (hadd) punishment for which, he noted, was more severe than adultery.

Indeed, it qualified as a capital crime, indicating that the crime was categorized differently and judged more seriously. “Sex cannot be forced, or taken, from a person,” Suleiman argued, citing the position of Islamic law. Did that include slaves? Suleiman was unequivocal. “Yes.”

Ingrid Mattson confirmed this, and elaborated on it. As early as “the time of Umar [634-44], we have discussions of rape, and what evidence can be used in rape cases.” Mattson would know. Not only is she formerly President of the Islamic Society of North America, the largest Muslim organization in North America, but she is a religious scholar, author, and professor of Islamic studies whose dissertation examined Islam and slavery.

Though largely unrestricted to that point, the Prophet attempted to reform slavery as practiced: slavery was not heritable (the children of slaves are born free, because, as Suleiman pointed out, the Qur’an assumes all persons are born free); that Muslims could not be enslaved (creating a tribal identity that transcended existing tribes); and that the offspring of slaves would be treated exactly as one’s own children.

Slaves themselves should be fed, and clothed, and housed, at a standard commensurate with their owner’s wealth—“clothe them,” Suleiman told me, quoting a Prophetic narration—“exactly as you clothe yourselves.” The children of slaves were not only not slaves, but to be treated as one’s own. They had rights. Tellingly, the Prophet encouraged his followers to name their sons “slave of God,” and “slave of the Merciful,” suggesting his distaste for hierarchical social relations, and emphasizing a common dependency on God.

Muhammad’s closest companions, including his dearest companion, Abu Bakr—who became the first Caliph after his death—became famous for their commitment to manumission. Abu Bakr would pay as much as he could, no matter how high the price, spending down his capital, because he believed there were few greater acts to earn merit in God’s eyes.

Suleiman stressed: “Freeing slaves” is so frequently mentioned as a meritorious act in the Muslim tradition that, in the 8th and 9th centuries, biographies of Prophetic companions cited, as virtues, manumission; Muhammad’s wife, Aisha, was lauded for “freeing six hundred slaves.”

All well and good: Muhammad changed what slavery meant, or at least sought to, and the tradition developed in response to that. But how can a slave actually consent to sex, given that she is someone’s property?

How is consent even possible?

Mattson noted the concern. She describes it as “anachronistic,” in that no legal traditions, Islamic or otherwise, discussed consent in the way we do today.

In the past, she said, “we don’t hear about consent in marriage, or in relationships where sex is lawful. What we do hear and read about is that anyone, slave or free, who is harmed, can take that case to a judge. A woman could go to a court and say her husband hit her, bruised her—she could get compensation.”

In the Prophetic period, consent was often passive: Expecting to hear objection and, in the absence of it, inferring agreement. That shouldn’t be surprising: Many premodern societies practiced arranged marriage, and many societies still do today. Our own, however, esteems a more active form of consent: The presumption is no, unless clearly indicated otherwise. (Mattson was clear, however, that our modern understanding is not at all incompatible with the intentions of the Prophet or the implications of Islamic texts.)

A man who slapped his female slave was ordered by the Prophet to free her. That was a minimal level of violence, Omar Suleiman noted, and he argued that, from this, the inference is drawn that any greater level of violence is similarly impermissible. And rape, as he told me, is classified in Islamic law as a violent crime. Suleiman explained that, “in Islam, to hit a slave, to use violence against a slave, is forbidden. The only expiation, and the legal penalty, is manumission.”

“In the pre-Islamic period,” Suleiman contrasted, “when a female slave entered the house, she became everyone’s sexual property. What Muhammad did is he constrained that. If she consented to a relationship with her owner, then she became like his wife.” It was a dramatic transformation, and constitutes an institution that is, in some respects, like slavery as we know it—men and women bought and sold—but in other respects very different; slaves could own property, marry, and could sue their owners in court. And their children would be free.

According to Mattson, sexual relationships with slaves were possible, but they created legal obligations on the owner, and legal rights for the slave. “If a female slave got pregnant,” she explained, “or there’s any evidence of a pregnancy, even miscarriage,” then that slave could not, for example, be sold. She would become like her owner’s wife. (If she was already married—and slaves, under Islamic law, could marry and divorce—then her owner had no such rights to initiate a relationship.)

The language of his time

It’s important to point our that many of the first Muslims were slaves, women, the supposedly lowborn, and those without tribal protectors. In the face of severe persecution for choosing Islam, and against their owners’ wishes, they stuck to Muhammad’s religion. Why would they if it hadn’t offered improvements in social status, some bond of faith and sister- and brotherhood more compelling than what existed around them?

Muhammad was born an orphan, and was only spared the suffering many on the margins endured because a powerful uncle adopted and cared for him. (This shield did not extend to his followers, whom he was often helpless to protect.) Eventually this was not sufficient, and he faced violent opposition to his religion from his kin. Over tribal attachments, or where even these did not exist, Muhammad offered Islam as a “supertribe”; no Muslim could enslave another.

And anyone was free to become Muslim.

But this was not a society that conceived of itself as containing atomized individuals, and furthermore this society had no support system for people who had no tribal attachments. Therefore Muhammad appeared more inclined to reform the structure of slavery than to end it altogether, although his encouragement of manumission, and his elevating former slaves to positions of great influence, suggested a deeply egalitarian sense.

Whether or not Muhammad wished to see his reformed understanding of slavery end in abolition is, of course, ultimately impossible to know. Still, it would be difficult to argue that he would have supported the practice of Muslim dynasties who saw the fact that slavery was no longer heritable as justification for annual “slave raids” to replenish and even increase the number, in direct opposition to Muhammad’s actions.

When slavery did end, and the manner of its ending speaks volumes.

Across the Muslim world, at varying rates (and embarrassingly slowly in places like the Gulf), slavery was abolished. This happened even though, as Mattson described, slavery had “flourished” in parts of the Muslim world, and “[had become] a major part of the culture” in many regions. How did Muslims respond to abolition, which mostly took place in the 19thcentury—as it did here in the U.S.?

Interestingly, Mattson cited two objections to abolition.

Traditionalists were not against the idea of blanket manumission per say, but they either argued that the Shari’ah offered no mechanism to effect such a decision, or that “our slavery is not like American slavery”—a fascinating indication of the interconnectedness of the world—because “slaves are a part of our families, they have rights, they can own property.”

Progressives countered that the Qur’an supports abolition, and they supported efforts to end slavery by providing theological justification, adapting to the reality of new forms of governance.

“Interestingly,” Mattson underscores, “once slavery was abolished, that was it. The conversation was closed.” Indeed, there hasn’t been a single effort since, in any part of the Muslim world, to reinstitute it in any form.

So rape has never been permitted in the Prophetic tradition, while slavery was deeply restricted, and, by the modern age, abolished altogether.

And along comes ISIS.

ISIS vs. everyone else

After the Ottoman Caliphate collapsed in 1924, political Islam was born, the fusion of religious identity with modern politics.

Pakistan was the first experiment in modern Islamic governance, and was founded as an egalitarian democracy. Iran, a theocracy, frames itself—like Pakistan (despite the different political systems)—as a reproduction of the Prophetic ideal of government. Yet slavery appears in neither country’s constitution. Likewise, it wasn’t discussed by Islamist movements, or by their radical jihadist rivals, including al Qaeda.

The slavery described in Callimachi’s article, and from other, harrowing reporting about ISIS, is utterly foreign to the Prophetic tradition; that, and their other behaviors, which are profoundly selective, ripped from their context, ignoring the numerous instances in which the Prophet Muhammad preferred mercy, amnesty and forgiveness.

Muslim scholars have issued collective condemnations of ISIS’ actions, arguing that even if a strictly regulated form of slavery was once permitted, it is now “forbidden,” and refusing, categorically, to countenance any reopening of the discussion.

Not that you’d know it given the media portrayals, which take the myth of objectivity to absurdity. Murtaza Hussain, from The Intercept, expressed legitimate frustration: “The overwhelming mass of Muslims themselves, including Islamic religious authorities, have been almost totally ignored in this debate—including in Callimachi’s article.”

For us to take ISIS’s claims seriously that, in reintroducing slavery and rape, it is simply returning to a Prophetic norm, requires us first to believe that the Prophet intended for slavery to include the rape and abuse of prisoners, which, as we have now seen, is not the case; and second, that the Prophet intended for slavery to continue in any form. Even if he did not, the fact that it has been discontinued presents the Muslim with a thought experiment.

To understand how absurd ISIS’ presumption is, that just because a practice existed in Muhammad’s time, it can and should exist now, let’s extend its logic to zakat (a form of obligatory annual charity owed by those whose annual savings exceed a certain threshold). Now let’s say a society emerged that had achieved a level of economic justice where everyone exceeded the threshold, such that there was no one to give the charity to. According to ISIS’s logic, it might hew to the spirit of Islam to deliberately impoverish people to ensure that this duty might be properly performed!

If Muhammad had been born into a society without slavery, would he be happy the institution was gone, or would he work to recreate it? That, ultimately, is the great flaw in much of our media analysis of ISIS, and credulity before its claims. That we do not stop for a moment and consider what it is that ISIS is actually saying before assuming that, because it mentions the Prophet, it must be true.

ISIS may in fact believe that it’s attempting to recreate the conditions of Muhammad’s time, though the practice of taking and killing hostages merely on account of their nationality more closely resembles the feuding of the pre-Islamic age. Likewise, using slaves as communal sexual property was, as Suleiman stressed, the practice of Muhammad’s time, but it was not Muhammad’s practice. It was the Prophet’s fellow Meccans’ habit, which he railed against and sought to moderate as best he could given the context.

ISIS are seventh century, just like Muhammad’s opponents.